After nearly five hours of testimony and attorney arguments, Fourth Judicial Circuit Court Doug Martin delayed a decision on whether the Huntsville School District violated the Arkansas Freedom of Information Act by denying a reporter access to an appeals hearing and refusing to tender documents to Witter resident Ben Rightsell.

At the end of what was scheduled to be a two-hour hearing Monday morning, the attorneys and Martin agreed that instead of closing arguments, both sides would prepare a brief due to Martin no later than the end of business on November 15. 

Fort Smith Attorney Joey McCutchen represents Rightsell, who filed suit against the district on July 28 in Madison County Circuit Court alleging the district and the Huntsville School Board violated both the open-meetings and open-records portions of FOIA. Attorney Steven S. Zega of Crouch, Harwell, Fryar and Fenner law firm, represented the district. The district is also represented by Charles Harwell of the same law firm. 

Before testimony was presented the district admitted that it had violated FOIA on several occasions during the spring of 2020 by failing to notify the media of expulsion hearings and training sessions, by not recording the meetings or hearings and by communicating over text message concerning business that would come before the board for a vote. 

The FOIA hearing Monday was for two remaining counts, the first that stemmed from the press being prohibited from attending a set of disciplinary hearings on May 19, 2021. The second derived from the fact that Rightsell never received the requested documents, most of which were provided to The Madison County Record from district officials as part of fulfilling multiple FOIA requests from the newspaper.

The matter before the court stems from ongoing investigations into sexual-abuse allegations by boys basketball team members that happened for two seasons in the boys locker rooms before and after ballgames. Several students involved in the matter were expelled or suspended, and some appealed their punishment. Hearings were held in early to mid-2021 for these student disciplinary actions, but the media and public did not receive the legally required notice that the hearings were taking place or were denied access to the open portion of the meetings. In addition, the FOIA complaint alleged that the district failed to record or maintain recordings, which is also legally required for all board meetings and hearings. 

The filing also asked that the district provide Rightsell with documents pertaining to the investigation, including any reports, text messages, emails, etc. It was reported during the hearing that those documents, many of which were provided to The Madison County Record also through a FOIA request, were not provided to Rightsell. 

McCutchen issued several subpoenas for the hearing, including to Superintendent Audra Kimball, Board President Danny Thomas, The Madison County Record General Manager Shannon Hahn, and Record Publisher Ellen Kreth. Kreth’s subpoena was withdrawn shortly before the hearing, and Danny Thomas was not called to the stand. Kimball, Hahn, and Rightsell provided the only testimonies throughout the hearing. 

Text Messages and Other Documents 

The majority of time spent in the hearing focused on conversations between board members, the board attorneys Zega and Harwell, and Kimball. A majority of these conversations were in the form of text messages between Kimball and Thomas, Kimball and Hahn, and Kimball and other district officials, including board members. 

The crux of the matter was that district attorney Zega said the messages, which he contended should be considered a part of the Title IX investigation, should not have been released to anyone, including The Record. 

“Regardless of the existence of the subpoena,” Zega said, “this is how a school district gets sued no matter what they do. … We shouldn’t have given the text messages to Ms. Kreth either because they are protected records,” Zega said.  

“Anything that touches on the investigation, not only are they exempt but they are prohibited from disclosure,” Zega argued. He argued that Rightsell did not have the right to the documents because Rightsell does not have a child involved in the investigation. 

McCutchen argued the text messages did not contain any private or identifying information and therefore did not require protection under either the Family Educational Records and Privacy Act (FERPA), which protects student records, or the Arkansas Child Maltreatment Act. 

“The only privacy issues here are that of that the superintendent and school board members and if that’s what we’re protecting today, that’s very scary,” McCutchen said. 

According to multiple testimonies, including court documents presented during the hearing, The Madison County Record received several documents under a FOIA request for “any and all documents” beginning Feb. 1. Kimball testified that she had relied on Harwell’s counsel when she provided the text message records, adding that she trusted Harwell to redact anything that could be seen as identifying information about specific students. However, she also stated that she redacted many of the text messages before submitting them to Harwell. 

Kimball was later advised by Zega to not provide the text messages she had already provided to The Record to Rightsell. 

“I relied on our legal counsel to respond to the document [request] and I was advised that those fell under Title IX,” Kimball said. 

“We specifically asked for text messages between school board members and Audra and they are squarely in that domain,” McCutchen countered. “The fact that we gave records that we shouldn’t have given in the first place, you don’t give it to others,” Zega countered. “If you screw up once, you can’t continue to screw up.” McCutchen argued back, “There’s a double standard here. They say one thing but they do another.” 

“I wasn’t trying to hide anything,” Kimball testified. “I had given them to the newspaper.”

“I relied on the advice of legal counsel every step of the way,” Kimball testified in reference to both the records and when The Record’s reporter was not allowed to attend the open portion of student disciplinary hearing held on May 19. 

The Rightsell FOIA request was “any and all documents” about what is referred to as “baptizing” or “baptisms” and “bean-dipping.” According to explanations from several victims, “baptisms,” occurred when several players physically restrained teammates while other players undressed and placed their bare genitals in or on the restrained players’ faces, foreheads or in their hair. Players were also “bean-dipped,” which occurred when players placed their rectum on another player’s face or nose. These acts happened to multiple players on multiple occasions during two basketball seasons.

Zega contended throughout the hearing that the text messages were part of the Title IX investigation and should not have been released to anyone, including news media. 

The focus was especially on text messages between Thomas and Kimball on February 22, 2021, when Thomas first broached the subject with Kimball, asking about what was being done about the issue. Kimball agreed both in the text messages and in court that she recognized the seriousness of what was happening. “Both of you talk about how very serious this is,” Zega said referencing the emails between Kimball and Thomas. Kimball testified that she agreed. Despite knowing the seriousness of the allegations, the district administrators did not immediately call the Arkansas Child Abuse Hotline, as required by law. 

“These families deserve privacy. Period, full stop,” Zega said. 

Kimball agreed that the nature of living in a small school district in a small town made it more likely that identities could easily be determined. 

“The intent may not be to violate privacy, but that’s what is happening,” Zega said. At one point in the hearing, Zega moved to strike the text messages from the record but Martin allowed them to be read and discussed with the admonishment to “tread lightly” and ensure no private or identifying information is read in open court. 

According to an affidavit from Kreth filed in federal court in another lawsuit concerning the sexual assault allegations, Huntsville School District Title IX Coordinator Tonja McCone also gave specific names of students during on-the-record interviews with the newspaper. This information, along with the fact that the text messages did not contain specific identifying characteristics  and were already widely distributed via the media, made the text messages subject to the FOIA, and therefore, they should have been provided to his client, McCutchen said. He obtained a copy of the text messages by submitting subpoenas to The Record’s attorney. 

“The lack of transparency here is astonishing,” McCutchen said. 

Another document discussed during the hearing was the answers to several questions Kreth submitted to Kimball via email regarding the investigations. Kimball testified that she drafted answers and submitted those  to Harwell. Because Harwell advised Kimball not to answer the questions, the answers were never submitted Kreth. 

However, The Record received a copy of the draft email through a FOIA request to Athletic Director Tom McCollough, who Kimball had sought insight from to ensure her answers were factually accurate. The draft email did not include any specific identifying information about any students. 

Closed Disciplinary

The issues involving the text messages and a series of disciplinary hearings where public access was denied were woven together throughout the hearing. In part, this was because the testimonies included text messages between Hahn, who tried to cover the hearings for the newspaper, and Kimball. 

The district notified the newspaper of the hearings scheduled back-to-back on May 19, 2021, but when Hahn arrived about 20 minutes before the first hearing began, she was told that she would not be allowed in the board room where the hearing was held, even for the open part of the hearings, due to privacy concerns. 

Hahn testified that she texted Kimball to be allowed in the building, which was locked because it was after hours. McCone came to the door to let her in but told Hahn she needed to wait in the lobby for Kimball to come visit with her. Kimball came in the lobby a short time later and apologetically informed Hahn that based on advice from Harwell, who was also present for the meeting the disciplinary hearing would not be open to the public. A short time later, Thomas also shared this information with her and told her that she must wait outside in her car, Hahn testified. He also promised to call her later about the remaining hearings.

“Our lawyer was adamant that she can’t be there,” Kimball testified. 

Hahn testified that as she waited for the meeting to begin, the student appealing the disciplinary action and his family arrived and she allowed them into the building since the doors remained locked.

Typically, disciplinary hearings begin as an open meeting. The board president then must ask the parents/guardian if they want the hearing open or closed and the parent/guardian must respond. If they request a closed hearing, anyone not directly related to the situation must leave. Instead, Hahn was not allowed in the first hearing at all. At one point in the evening, Hahn texted Kimball and said she assumed that since the attorney had said not to allow anyone into the first hearing, that it would not be allowed for any of the subsequent hearings. Hahn indicated she would follow up the next day. 

“It made sense that if it was going to stand for the first, it would stand for second through fourth hearings,” she said. Zega challenged her testimony and asked her if it was possible that Thomas forgot to call her due to the late hour when all the hearings were complete. Board deliberations did not end until shortly after 3:30 a.m. on May 20. An open meeting was called to order shortly after 3:30 a.m. At that point, McCutchen pointed out that not only could Hahn have attended that meeting but the families and public would have been allowed to as well. 

McCutchen countered with the question, “Is it possible he just didn’t want the media there?” Hahn’s response was that she made the assumption that she would not be allowed in any of the hearings because she was barred based on Harwell’s advice. She also said that both situations could have been possible. 

“In the world of possibilities, yes,” she said. 

As the hearing started to draw to a close, Zega asked Martin if he would consider allowing the attorneys to submit briefs instead of doing closing arguments. Both Martin and McCutchen agreed to the idea, although McCutchen noted he and his client were hoping for a ruling that same day. Martin ordered that the briefs be submitted to his office no later than end of business on Nov. 15 and that they be no more than 10 pages single spaced or 20 pages double spaced.